Defendant's
Motion to Bar Plaintiff from Introducing Evidence of
Plaintiff's Prescription Records and the Underlying
Medical Conditions the Prescriptions Were Written to Address
[73] is denied. See Statement below for further details.

STATEMENT

According
to Defendant ABM Janitorial Services-North Central, Inc.
(“Defendant”), it has been trying for months to
obtain HIPAA (short for Health Insurance Portability and
Accountability Act) waivers from Plaintiff Neidy Berrios
(“Plaintiff”). Defendant wants the waivers so it
can subpoena Plaintiff's prescription records at various
pharmacies. Defendant wants to discover whether and how often
Plaintiff filled prescriptions for anti-depressant
medications during a period of time she alleges she needed
those medications because of mental and emotional distress
she suffered as a result of Defendant's alleged conduct
that gave rise to Plaintiff's claims in this lawsuit.

Defendant
says Plaintiff has not been cooperative or timely in
responding to Defendant's requests for the HIPAA waivers,
and it filed a Motion to Compel Plaintiff to provide the
waivers on January 8, 2018 [56]. The Court granted the Motion
in part on January 12, 2018, when Plaintiff's counsel
failed to appear at the presentment hearing for the Motion.
The Court ordered Plaintiff to provide the HIPAA waivers by
January 26, 2018 [59]. The Court also stated that if
Plaintiff did not provide the waivers, then it would
recommend to the District Judge that Plaintiff be barred from
introducing certain evidence to support her claims for
emotional or psychological distress on the ground that she
had prevented Defendant from conducting discovery into
Plaintiff's efforts to mitigate those damages by refusing
to provide Defendant with access to her pharmacy prescription
records. The Court set a briefing schedule with respect to
other aspects of Defendant's Motion to Compel not at
issue here [56, 59].

Plaintiff
did not file a response to Defendant's Motion to Compel.
In an order dated February 14, 2018 [70], the Court said that
if Plaintiff did not produce the HIPAA waivers Defendant was
seeking by February 21, 2018, “then Defendant should
move [to] bar Plaintiff from introducing evidence concerning
her prescription records and the medical issues the
prescriptions were written to address.” Id.

Defendant
says Plaintiff has not provided all of the HIPAA waivers it
was seeking. Therefore, as the Court suggested in its order
of February 14, 2018, Defendant filed a Motion to Bar
Plaintiff from Introducing Evidence of Plaintiff's
Prescription Records and the Underlying Medical Conditions
the Prescriptions Were Written to Address [73]. The Court set
a briefing schedule on that Motion, and Plaintiff (again) did
not file a response to Defendant's Motion. Accordingly,
Defendant now seeks an order from this Magistrate Judge
recommending to the District Judge that Plaintiff be barred
from introducing the evidence referenced in the Court's
orders of January 12, 2018 [59] and February 14, 2018 [70]
because she did not fully comply with those orders.
See ABM's Supplement to its Motion to Bar
Plaintiff from Introducing Evidence of Plaintiff's
Prescription Records and the Underlying Medical Conditions
the Prescriptions Were Written to Address [81].

It
would be relatively easy to grant Defendant's Motion to
Bar [73] in light of Plaintiff's complete failure to
respond to Defendant's original Motion to Compel [56] and
its current Motion to Bar [73]. But it appears from the
record developed by Defendant that Plaintiff, albeit without
any real explanation or transparency on her part, already may
have provided Defendant with all or most of what it is
entitled to receive. It appears that Plaintiff has provided
HIPAA waivers for certain periods of time for particular
pharmacies going back in some cases to 2001 and in others to
2010, including waivers going back to 2001 through an
unspecified date (which appears to be in December 2013) in a
related case between these same two parties, Berrios v.
ABM Janitorial Services, No. 15-cv-1406 (N.D. Ill.).
See ABM's Supplement to its Motion to Bar
Plaintiff from Introducing Evidence of Plaintiff's
Prescription Records and the Underlying Medical Conditions
the Prescriptions Were Written to Address [81] at p. 2 and
the attached Declaration at pp. 1-2, paras. 2-4. That recent
filing by Defendant appears to contain the first complete
inventory of the HIPAA waivers Defendant has received from
Plaintiff that has been filed of record or provided to the
Court during the gestation of this dispute. Therefore, the
fact of the matter is that Defendant may have in its
possession HIPAA waivers that cover all or most of the period
of time relevant to the claims being made in this lawsuit,
and it is not clear how much Defendant is or will be hobbled
in its ability to defend this case if it does not receive
additional prescription or pharmacy records for periods of
time not covered by the waivers Plaintiff has provided so
far.[1]

Further,
although Defendant insists upon obtaining HIPAA waivers that
go back to 2001, which is the time period covered by the
waivers that Plaintiff provided to Defendant in the 2015
case, it is not clear it is proportional to the needs of this
case for Plaintiff to provide waivers going back 17 years for
any pharmacy for which Defendant does not already have that
information from the 2015 case. See Fed.R.Civ.P.
26(b)(1). Plaintiff apparently agreed to provide HIPAA
waivers going back to 2001 in the 2015 case but there never
has been a judicial determination that was an appropriate
period of time given the claims in this case -- other than
the order entered on January 12, 2018 [59] by default because
Plaintiff failed to respond to Defendant's original
Motion to Compel [56].

It also
is not clear from the record before the Court at this time
what, if any, prescription or pharmacy records exist for
which Plaintiff has not already provided Defendant HIPAA
waivers. Defendant concedes that it has HIPAA waivers for
certain pharmacies through the present. For example,
Defendant now says that Plaintiff has provided HIPAA waivers
for Thorek Memorial Hospital covering the period from
December 28, 2013 to the present, from Walmart from January
1, 2010 to the present, and for Walgreens from December 28,
2013 to the present. Although Defendant appears to be asking
Plaintiff for HIPAA waivers for other pharmacies for a period
of time after December 27, 2013, to the present, it is not
clear that Plaintiff utilized the services of these other
pharmacies (e.g., Jewel Albertson, CVS, Walgreens, and Union
Health) after December 27, 2013. Plaintiff provided Defendant
with HIPAA waivers for those pharmacies through December 27,
2013, in the 2015 lawsuit but it is possible that she no
longer used at least some of these pharmacies after 2013. So,
Defendant already either may have records from these
pharmacies for the period of time during which Plaintiff
filled prescriptions at those pharmacies or HIPAA waivers for
that period of time.[2]

Finally,
although the Court did say in its prior orders that it would
recommend that Plaintiff be barred from introducing evidence
“concerning her prescription records and the medical
issues the prescriptions were written to address” [70]
and “evidence to support a claim for emotional or
psychological distress as a result of Defendant's
conduct” [59] if Plaintiff failed to provide Defendant
with the HIPAA waivers it was seeking so it could conduct
discovery into Plaintiff's efforts to mitigate those
damages, that was before the Court was advised of what HIPAA
waivers covering which periods of time Plaintiff already had
provided to Defendant. See ABM's Supplement to
its Motion to Bar Plaintiff from Introducing Evidence of
Plaintiff's Prescription Records and the Underlying
Medical Conditions the Prescriptions Were Written to Address
[81] at p. 2 and the attached Declaration at pp. 1-2, paras.
2-4. It may be that Defendant is not being deprived of access
to information concerning Plaintiff's pharmacy
prescriptions that are necessary to its defense. In fact,
based on the present record, it is not clear what, if any,
information about Plaintiff filling or not filling
prescriptions written by her physicians during the relevant
time period Defendant does not have or does not have the
ability to obtain.

The
Court recognizes that Plaintiff's counsel's repeated
failure to respond to discovery in a timely manner and her
refusal to respond to motions filed by Defendant in
accordance with briefing schedules set by the Court
(sometimes with her express input) may have put Defendant in
a position in which it does not know what it does not have
from Plaintiff. That is a problem. However, to the extent
some relevant HIPAA waivers may not have been provided to
date, the Court does not believe that failure by Plaintiff -
if in fact Plaintiff has failed to provide HIPAA waivers for
the relevant time period - justifies at this time the broad
relief Defendant now is seeking.

Accordingly,
while Plaintiff's failure to respond in a timely manner
to Defendant's discovery requests and to Defendant's
motions relating to those discovery requests is
frustrating-not only to Defendant but also to the Court-it is
not clear on the present record that Plaintiff should be
barred from introducing the evidence that Defendant seeks to
bar her from introducing by its Motion to Bar [73] and its
Supplement to that Motion [81]. Therefore, Defendant's
Motion [73] is denied. This order, however, is without
prejudice to Defendant developing a record, if it can do so,
that would support its claim that Plaintiff has not, ...

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